Henry v. United States – Oral Argument – October 21, 1959

Media for Henry v. United States

Audio Transcription for Oral Argument – October 20, 1959 in Henry v. United States

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Earl Warren:

Number 17, John Patrick Henry, versus United States of America.

Mr. Calihan, you may continue your argument.

Edward J. Calihan, Jr.:

Mr. Chief Justice, may it please the Court.

The petitioner contends in this cause if by no stretch of existing law on the subject can the known facts to the agents at the time they stopped the motor vehicle constitute probable cause.

Now, the Government takes an erroneous comfort in the use of the word “implicate” as to the defendant Pierotti out of four meanings in Webster and they have utilized Webster to define this word, they have ignored the innocent connotations of the word.

It is felt that Pierotti on these facts is entitled to this meaning to involve in the nature or operation of something and that is to say on the facts that Pierotti was employed as a dockman for a concerned which was involved in the transshipment of the — of articles in commerce.

Now, what is the authority of a federal agent under the statute to arrest without warrant?

The section which is quoted in the brief says that “An agent may arrest or any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.”

Now, the elements are, one, that it must be a federal offense.

How could the two agents in observing what the petitioner and his codefendant were doing on the streets of Chicago in broad daylight, merely moving cartons which were unrecognizable in any shape conclude that a federal offense was being committed.

Moreover, it must be a felony.

Now these cartons were not large, they were before the trial court.

I venture to say that the question of the value of $100 enters into the picture because certainly if what they have in those cartons was of a value of less than $100, we would have no felony.

Potter Stewart:

The agents did know that there had been debt that was given by United States shipment —

Edward J. Calihan, Jr.:

The night before.

Potter Stewart:

— the day before or the night before?

Edward J. Calihan, Jr.:

The night before — yes, Your Honor.

Potter Stewart:

And in the same area of the city?

Edward J. Calihan, Jr.:

Yes Your Honor.

Now, —

Earl Warren:

And they did have some information, did they not, according to their testimony that one of these men was implicated in the — in interstate commerce violation?

Edward J. Calihan, Jr.:

— no, sir.

No sir.

Earl Warren:

What was that the —

Edward J. Calihan, Jr.:

The words were that he was implicated in interstate shipments.

There is no indication of implication in interstate debts, Your Honor.

He was working on the dock.

He was presently employed by Mr. Ziffron.

I don’t think that you can draw any evil connotation from that.

That’s the testimony.

Earl Warren:

Well, do you think that the agent when he testified to that meant that by implication, he was just — he was just working?

Edward J. Calihan, Jr.:

I don’t — the question was asked by the Assistant United States Attorney.

The answer by the agent was yes.

I don’t know what he meant and that point was raised in the Court of Appeals and I believe the decision discusses what is meant by that.

I think that Mr. —

Earl Warren:

Well, I suppose under the rule of evidence, he was precluded from asking what was told him, wasn’t he?

Edward J. Calihan, Jr.:

I think —

Earl Warren:

Did tried — did they try to go into the question as to — as to what the implication was?

Edward J. Calihan, Jr.:

I —

Earl Warren:

Was there objection?

Edward J. Calihan, Jr.:

There may have been an objection.

Earl Warren:

There was an objection, right?

Edward J. Calihan, Jr.:

I’m not certain, and on the part of the other counsel for the codefendant, Mr. Pierotti.

Earl Warren:

Yes.

That’s all.

Edward J. Calihan, Jr.:

Well, what is there about this that indicates that a federal offense was being committed?

Certainly, there were no markings visible on the cartons.

They couldn’t even tell the size.

I believe that from this, the agents might conclude that everyone in that area or possibly in the City of Chicago carried a carton, was a suspect of a federal offense.

And I just don’t believe that the existing law on that subject goes that far.

Now, size has a bearing on value.

I don’t know how much whiskey a person can carry in one trip.

I would say probably less than $100.

Certainly he was only observed carrying carton out of the gangway and put it into the car.

Now Illinois law, as I understand it, governs the question of arrest without warrant.

The leading case in Illinois is People versus Maryville.

I am very sorry to state to the Court that the citation in the brief is an error.

It’s 276 and not 236.

I’m very sorry about that.

I discovered that last night.

(Inaudible)

Edward J. Calihan, Jr.:

276, Illinois appellate instead of 236.

The — that case involved a man walking down the street and in the neighbor when someone hollered holdup and two police officers seeing this man walking down the street shouted to him “Stop.

Put up your hands,” we’re police officers.

And as he raise his hands, his coat raised up and the butt of a pistol stuck out from his trousers.

Now, the — on a motion to suppress, he was charged with the — carrying a weapon.

The Court held and I stated as law in Illinois that at the time the man was stopped under authority of the law with intention to stop him and they restrained his locomotion that they had arrested him.

A subsequent viewing of the pistol as he raised his hands did not give the — stopping of him at any vitality.

They state that the most characteristic element of an arrest is a restraint of locomotion.

Now, in this area it is the petitioner’s contention that there’s been an encroachment upon the freedom of locomotion which started out with the Carroll case.

I think Justice McNeils wrote a dissent in there and then we went to the Brinegar case in which Mr. Justice Jackson had some strong words on how far you can go in the search and stopping of an automobile.

But all these and the other cases cited by the Government were far stronger facts where the case is cited by the Government involved alcohol cases, involved loaded cars, known bootleggers, they involved narcotic agents with informers, they involved District of Columbia cases where the District Police also have some traffic supervision, but I respectfully state to this Court that there isn’t even a strong suspicion of evidence and — evident in this case much less any probably cause.

I think inherent in this case, too or overtones of — of this Court’s decision in Mallory.

Now the Mallory case, I believe the Court said that the rest or let’s take that if the Court feels that the arrest took place at the point the car was stopped, then — which was the stopping of the petitioner’s freedom of locomotion that requires the next step is arraignment.

I think there are overtones of this same proposition to be found in Mallory.

Potter Stewart:

Nothing that petitioner said between the time the car was stopped and the time he was — there was a hearing and nothing that he said during that interview was used as evidence against him at the trial.

Edward J. Calihan, Jr.:

Oh yes.

Oh yes, Your Honor.

Because —

Potter Stewart:

What?

Edward J. Calihan, Jr.:

— they asked him — he said — the first thing he said was after (Inaudible) he turned around to the codefendant and said “Tell them you just picked me up.”

Now, they used that as some sort of a lie.

Actually —

Potter Stewart:

That was at very moment that the car was stopped.

Edward J. Calihan, Jr.:

That’s right.

And then subsequently they questioned him and he denied being in the red top lounge.

Potter Stewart:

Yes.

Edward J. Calihan, Jr.:

Now, I feel that in the Government’s brief, they point out these elements which were conversations after the point of arrest which were used by the trial court to convict on the facts.

I believe that those statements were an element in this conviction.

Potter Stewart:

Now, his — of course his statements were exculpatory, were they not?

Edward J. Calihan, Jr.:

Well — well if — if they were exculpatory and the agents said they did see him in front of the tavern.

He’s been caught in a lie and certainly to that extent, if he denies being in the tavern, the Court might take that into consideration in assessing guilt.

Potter Stewart:

This was a trial by the court.

Edward J. Calihan, Jr.:

Yes.

Potter Stewart:

In front of a jury?

Edward J. Calihan, Jr.:

Yes, Your Honor.

Potter Stewart:

Jury (Inaudible)

Edward J. Calihan, Jr.:

I would like to mention four or five items that are taken up in the Government’s brief.

The first is that they used the word or the expression unsuccessful attempt to catch up.

I would like this Court to understand that in this matter there is absolutely no question of pursuit.

It was a question of trailing and they took the long way around and lost them.

There is no pursuit involved in this case.

I note that the words indirect route is used.

The only more direct route to where they were going would have been to make a U-turn which in many portions of Chicago is illegal.

They went around the block.

Now, as a further —

Earl Warren:

(Inaudible) time, they went up to the alley?

Edward J. Calihan, Jr.:

Sir?

Earl Warren:

How about the time they went up to the wrong alley?

Edward J. Calihan, Jr.:

Well, they were — they took the wrong block, that’s all and then they came back and went up to the right alley, but the second time they went up to the right alley.

Earl Warren:

Wouldn’t the judge assess the reason why they went up that wrong alley in connection with the rest of their conduct?

Edward J. Calihan, Jr.:

I don’t think there’s anything suspicious about picking a wrong alley.

Only a block away, you start up an alley and see it’s the wrong one, turn around and go out the — along the next block.

I don’t see anything suspicious under those circumstances.

Earl Warren:

But normally I suppose it wouldn’t but I wondered, if it couldn’t be considered in connection with other things.

Edward J. Calihan, Jr.:

Well, any – it’s 2 o’clock in the afternoon.

I would imagine any mistake in motors shouldn’t be regarded as suspicious.

You make a wrong turn, you back up and turn around and go other way.

I can see nothing suspicious in the conduct of the defendants in the use of that vehicle.

They also make the statement in the brief.

Edward J. Calihan, Jr.:

It is evident that the cartons would be removed from the car just as it previous loaded there.

Now, there is absolutely no evidence that the cartons that were placed in there were ever removed.

There is no examination of the car at any point and they talk about delivery of merchandise to a liquor store.

There is no evidence of any delivery of those cartons.

Even assuming there were empty beer bottles going back to a tavern, which they weren’t and which there’s no evidence of, I see nothing suspicious in those circumstances.

The other theory that the petitioner makes in this case is that there’s been an improper interpretation of the so-called presumption, the unexplained possession of recently stolen goods will authorize conviction.

Very briefly, it is the petitioner’s contention that the facts alone explain his possession such as it was.

He was a passenger in a vehicle.

There isn’t any quest that he met Pierotti by a chance.

There is no evidence that he knew these were stolen or anything about it.

The car was borrowed.

He was in it.

He was in it when the car was stopped.

And I don’t think that the law requires that the defendant take the stand and do at which he’s already done by his plea of guilty.

The circumstances alone explain and are just as reasonable so far as his innocence is concern as they are with guilt and I think under those circumstances that on the motion for judgment of the acquittal, they court below should have find him not guilty.

For all these reasons and two points, the petitioner respectfully urges that the decisions of the court below be reversed.

Earl Warren:

Mr. Patterson.

Kirby W. Patterson:

Mr. Chief Justice, members of the Court.

There’s one thing I would like to clear up at the outset of my remarks.

A question was asked yesterday, I believe by you, Mr. Chief Justice, as to whether or not there is any difference in the position of the Government and the petitioner as to time the arrest took place.

The answer is no, there is not.

I might explain just exactly how that came about because it is of importance as the to the Government’s position generally in similar cases.

In this case, the petitioner contended throughout, has contended throughout and from the beginning that the arrest took place at the time the car was stopped.

Now, there’s nothing in the record below to indicate that that position was taken by the Government except on the opinion, in the Court of Appeals, the dissenting judge mentioned that the Government Attorney in the course of oral argument conceded that the arrest took place at the time the car was stopped.

When the case came to this Court on our brief in opposition, we adhered to that concession.

We felt obliged to do so.

At the same time, we indicated doubt as to the propriety of the concession and we have reiterated that position on our brief on the merits in this case.

So — so far as this case is concerned, the arrest took place at the time the car was stopped.

We have indicated and I think we should state at this time very briefly, what we think that law is generally.

We do not think that merely stopping a car for questioning of the occupants constitutes an arrest.

Kirby W. Patterson:

There must be more.

There must be an intent to take a person in question into custody to answer for a crime, answer in Court.

Since an arrest is more than merely stopping of a car, it takes more to justify an arrest.

It takes probable cause to justify an arrest.

Merely stopping the car we say, speaking of the law generally, that it is only necessary that the action of the officers be reasonable under all the circumstances of the case in stopping the individual whether he’d be in a vehicle or not and questioning him as to the possible commission of a crime.

Now, that question will be presented to Your Honors in a later case, Number 52, Rios, which is coming up this term and I mention it — for that reason, separate key (Inaudible) for the Court.

We, the concession which we thought obliged to adhere to in this case, applies only to this case and does not state position of the Government generally.

But your (Inaudible) to examine this case, perhaps the arrest was made (Inaudible)

Kirby W. Patterson:

We are not exactly asking it, Mr. Justice, but we are not arguing the other point.

The other side is really asking me —

(Inaudible) about it.

Kirby W. Patterson:

Yes and we adhere to that concession below, yes.

It’s not clear what you (Inaudible)

Kirby W. Patterson:

Well, our position, Mr. Justice Harlan is that that concession has been made and we adhere to it.

There is another ground on which the action of the officers could be justified.

We do not feel ourselves that we can urge that.

Well assuming —

Kirby W. Patterson:

Yes.

— assuming that one was to come to conclusion without the premise that the arrest took place at the time that you say you conceded does or willing to concede that, that there was no probable cause.

Can this judgment be sustained on the alternative grounds that you are talking about?

Kirby W. Patterson:

Well, I think the Court could.

I don’t think we in good conscience can urge any view of the Government’s concession.

I think the Government can sustain the action of the lower court on any ground on which the facts show it can be sustained.

However, we do not think that in all propriety we should urge that ground in view of the concession which was made below and the adherence to that concession which was made on the brief on our position of the case.

It is.

William J. Brennan, Jr.:

But I think, Mr. Patterson, we can’t agree that that’s a probable cause for the stopping of the car and the stopping of the arrest.

Kirby W. Patterson:

Yes.

William J. Brennan, Jr.:

In other words, you’re hoping we’ll go along and find it —

Kirby W. Patterson:

Well, I think the Court could do that.

I think myself and — I think perhaps this was supposed to.

Kirby W. Patterson:

I think that the case rather clearly shows probable cause but I — I do think in answering your question, I do think that the Court and — acting on this motion (Voice Overlap) The question goes here.

William J. Brennan, Jr.:

That wasn’t my question by that.

You’re saying that your hoping will go on and —

Kirby W. Patterson:

Well we would all — let’s hope for a —

But you’re not asking us to do it.

Kirby W. Patterson:

We’re not asking you to do it.

The point — the point is that we are to take — we are to take this argument in your brief as really as a reservation against what you’ll be arguing in Rios.

Kirby W. Patterson:

That is correct.

But that you’re asking us to disregard it for the purpose of the decision of this case.

Kirby W. Patterson:

We’re not asking you disregard it.

We’re only asking you to regard the other.

In other words, they’re the ones to – you are right.

I see you’re not entirely (Inaudible)

Well, I don’t understand what you’re saying.

Kirby W. Patterson:

Of course as I see it, Mr. Justice Harlan.

Felix Frankfurter:

May I intervene?

Kirby W. Patterson:

Yes, Mr. Justice.

Felix Frankfurter:

I’ll see if I can get your point.

Kirby W. Patterson:

Yes.

Felix Frankfurter:

What you hope or don’t hope is irrelevant to the duty of this Court to sustain a judgment which is legally sustainable on a valid legal ground.

Kirby W. Patterson:

That is correct.

Then however, Mr. Justice Harlan, and other members of the Court as well, we are — entirely upon the basis of probable cause in this Court because that concession was made and I think there was probably cause.

Felix Frankfurter:

Would you mind — would you mind without arguing, but just stating as propositions the items that you think add up to probable cause on the assumptions that the arrest was made when the car was stopped.

Kirby W. Patterson:

That includes voluntary argument to answer that question, Mr. Justice Frankfurter.

Yes.

Felix Frankfurter:

— just stating with the fact —

Kirby W. Patterson:

Let me just state the facts.

Felix Frankfurter:

I don’t want an argument.

Kirby W. Patterson:

Yes.

Felix Frankfurter:

I want the facts.

Kirby W. Patterson:

Alright.

Let’s just have the facts this time.

Felix Frankfurter:

(Inaudible) minds of the arresting officer.

Kirby W. Patterson:

And let us consider this —

Felix Frankfurter:

I will not take the whole half hour then.

Kirby W. Patterson:

No, no.

That will not.

That will take three or four minutes.

Perhaps — no, perhaps a little bit more than that.

Felix Frankfurter:

Yes.

Kirby W. Patterson:

But to —

Felix Frankfurter:

The state of (Inaudible)

Kirby W. Patterson:

These are the facts without comment.

Felix Frankfurter:

Yes.

Kirby W. Patterson:

These are the facts.

A federal offense had taken place the night before these events here outlined, and it had taken place at 25th in Canal St. in the City of Chicago, that’s in South Chicago.

These officers — I should say these —

Felix Frankfurter:

That of place — that are industrial — at a business localities which employed how many people?

Kirby W. Patterson:

The record does not show that was undoubtedly a substantial number of people.

Felix Frankfurter:

You mean by substantial of 20 or 200?

Kirby W. Patterson:

Well, (Inaudible) truck line.

There’s nothing in the record to show the employees.

Felix Frankfurter:

(Inaudible) what you notice about that, can’t be in a way (Inaudible)

Kirby W. Patterson:

Well, I think you could take judicial notice — quite a number of people, the — involved in a inter-state truck line.

Then —

Potter Stewart:

It’s a federal offense?

Kirby W. Patterson:

A federal offense.

It was the theft of whiskey from an interstate ship.

Now, —

Felix Frankfurter:

Can we — why must that be assumed, the whiskey might have come to a point of rest and not —

Kirby W. Patterson:

Well, it’s a simple matter stipulation that the —

Felix Frankfurter:

And that maybe (Inaudible) people question of — as to what —

Kirby W. Patterson:

No.

I think the stipulation in this case, Mr. Justice Frankfurter, was that this whiskey was being shipped —

Felix Frankfurter:

Alright.

Kirby W. Patterson:

— in interstate commerce.

Felix Frankfurter:

That’s a perfect answer.

Kirby W. Patterson:

Yes sir.

Now these two officers on the following afternoon about 2:10 p.m., the two FBI agents, were cruising the territory and looking for leads as to that theft, and they saw two men walking across the street from the redtop tavern.

Now, as I understood the statement yesterday, it was indicated that the petitioner had been in this tavern and had been negotiating for the loan of a car for the purpose of betting a horse.

Felix Frankfurter:

The officers knew that?

Kirby W. Patterson:

No, no.

But I’m —

Felix Frankfurter:

Alright.

Kirby W. Patterson:

— correcting a misstatement as I understood it, if you please.

As I read the record, the borrowing of the car had taken place at least two hours earlier and at another tavern and I state that merely parenthetically.

These are the facts —

Felix Frankfurter:

Now what has to do with the problem?

I think it has to do with the problem, does it?

Kirby W. Patterson:

No, sir.

No sir.

Felix Frankfurter:

Other things?

So, why do we waste time — I can take your two minutes.

There’s nothing to do with that.

Kirby W. Patterson:

Well, Your Honor, that will come in, in another connection, I thought you better bring it in right now because it — as that point of facts are brought.

Now, they saw these two men and they were known to them.

Now, they were asked whether they conversed with them and — then they asked what the nature of the conversation.

Felix Frankfurter:

(Inaudible) known to them?

What are —

Kirby W. Patterson:

Well, now they were asked what — they just simply said they knew.

Kirby W. Patterson:

They were asked as to what the nature of the conversation was, and I think —

Felix Frankfurter:

Do you think that’s anything — that’s anything but a mutual item?

Kirby W. Patterson:

Well, I think perhaps by itself, it’s a very little significant, but I was going on to say —

Felix Frankfurter:

They knew the Governor of Illinois maybe or the Congressman —

Kirby W. Patterson:

That — that’s true.

That’s true, Mr. Justice Frankfurter, but they are restricted as I will attempt to show as to what the nature their knowledge was.

Felix Frankfurter:

That’s why I’m asking.

Kirby W. Patterson:

Yes.

Felix Frankfurter:

What are the —

Kirby W. Patterson:

The question asked perhaps is not a very proper, what was the nature of your conversation with these two men?

And that the judge properly, I think, ruled out.

Then the agent was asked this question, “Did you have information that the companion of petitioner Pierotti was implicated in inter-state shipments.

There was an objection.

The Court allowed the witness to answer but restricted to answer to a yes or no answer.

His answer was yes.

So, we don’t know what the nature of the implication was.

We just have that word and I’ll come back to that later because as you suggested, I won’t discuss the facts at this time or the statement.

Felix Frankfurter:

But why do you come back later?

Kirby W. Patterson:

Well, because I — I think I —

Felix Frankfurter:

Well won’t you state now if you could.

Kirby W. Patterson:

I’m stating the facts right now.

Felix Frankfurter:

And it begins of that — of the significance of all that there is in the record is what you’ve read on page four and five of your brief.

It’s all — there is on that answer.

That’s all there is, is there?

Kirby W. Patterson:

No, I think there’s quite a bit more than this, Mr. Justice Frankfurter.

Felix Frankfurter:

No, I mean as the implication.

Kirby W. Patterson:

Yes, that’s all there is.

Felix Frankfurter:

That’s all there is.

Kirby W. Patterson:

That’s the implication.

Felix Frankfurter:

What significance — what legal significance bearing on the lighter check on probable cause you derive from that?

Kirby W. Patterson:

Well, it’s this.

I think that the common ordinary use or implicate when applied to a criminal proceeding is — that it means implicated in a crime or a conspiracy something of that nature.

It’s very unsatisfactory in this case —

Felix Frankfurter:

The U.S. Attorney could have asked another question to bring all that out.

Kirby W. Patterson:

Well, I think it could have been asked better than it was.

I do that.

Felix Frankfurter:

It wasn’t asked at all.

Kirby W. Patterson:

It was — it was asked — it was not asked at all, Mr. Justice Frankfurter and yet the same time, the Court indicated by his two rulings there, I think he probably indicated to the attorney who was trying for the Government.

He indicated — he wanted nothing more than a yes or no answer to that.

Felix Frankfurter:

It must —

Kirby W. Patterson:

Now, he shouldn’t have done that.

Felix Frankfurter:

(Inaudible) in going along and kept that out of them.

Kirby W. Patterson:

I agree.

Felix Frankfurter:

There was an objection to the question and the Court says, “You may answer”.

Will you answer the Courts yes or no meaning that question is susceptible of an answer, it doesn’t mean that another question can be put.

Kirby W. Patterson:

I agree with you.

I think they should have gone further.

We do in all this — yes.

Earl Warren:

Isn’t there something in the record to indicate that this information came from the employer?

Kirby W. Patterson:

Yes.

The next question was that — the next question was — who gave that information and it was an officer of the employer Pierotti who gave it to the agent.

Now, whatever the nature of that information may have been, as I say that the record is very unsatisfactory on that.

The — and whatever the nature there, acquaintanceship was with these two men.

The two agents apparently thought it was worth while to watch them because they did watch them.

And — they followed them and they went south along Wall Street and turned west, back north again, west again, and came to a north and south alley which currently was the wrong alley because they turned around and came back to the similar alley in the previous block, running north and south and there the Ford turned in and the federal agents parked their car and got out to inquire what happened, and here’s what they saw in there.

They saw the petitioner who was a passenger in the car, get out and move around the car, go in the gangway at the west side of the alley and come back after about two minutes, carrying some cork woods and loading them into the Ford and the Ford then drove off to north and turned east.

Now, they were not able to arrive the same place to catch up is expressly use, catch up with them.

They didn’t find them again driving that car but they did then return, the agents did, to the original place where they have seen the two men.

And they’re parked in the same spot for that previously been was this Ford.

Well, the agents stopped, and they parked their car and they watched and shortly thereafter, the two men came out of the redtop tavern, and they stopped and talked and wait for the parties that the agents knew named Bedlow and then they went ahead and got in their Ford and drove off again.

Kirby W. Patterson:

The agents followed them —

Potter Stewart:

Were there anymore — were there anymore cartons involved in (Inaudible)

Kirby W. Patterson:

Yes.

Here’s what — I’m coming to that right there, Mr. Justice.

They went back on the same course except this time they went directly to the correct alley, went in there and were again observed — petitioner was observed to load out these cartons.

And again, they drove off to the north part of the alley.

Now, this time having some indication where the Ford might be destined to go, the agents headed down on this end of the block, the same direction as the Ford is going down there and after the Ford has gone a block and half and reached Wall Street, that’s where the bar was located — turned south.

When they turned south, the agents turned north and they flagged them down.

And they moved their car up ahead of the — other car.

Now there’s nothing in the record indicate that any parallel hazard was involved in that maneuver.

It was simply that they had to meet them from the opposite direction in order to head them off and it is customary of course among officers when they stop the car they park their car in front of the car which is being stopped.

Now, those are the facts, Mr. Justice Frankfurter.

Felix Frankfurter:

Now, may I ask you a question?

Kirby W. Patterson:

Yes.

Felix Frankfurter:

Was there anything additional bearing on probable cause that happened between the time that the officers saw these men load their car, load the cartons in the alley and the time that they —

Kirby W. Patterson:

I think that is pretty — pretty fully covered and I think that’s it.

Felix Frankfurter:

Pardon me.

Kirby W. Patterson:

I think that’s pretty fully covered.

Felix Frankfurter:

In other words, they could have — from your point of view, they had all the knowledge they had at the time they stopped them when they saw them —

Kirby W. Patterson:

That’s right.

Felix Frankfurter:

— so they could have stopped them right into the —

Kirby W. Patterson:

Well, of course there was just a little bit more as they were coming back and heading back again in the direction of the tavern for the second time.

By that time, it seems to me the time had come for action if any action was to be taken.

Well, of course they couldn’t.

They couldn’t go — out for a search warrant.

That would take them 45 minutes or an hour.

Do you think they could have gotten a search warrant on this — an affidavit contained what is in this record?

Kirby W. Patterson:

Well, I think they could have, yes sir, but I think by that time, the bird would have flown.

They couldn’t find the merchandise by that time.

I think they could have.

Now I’m asking you, do you think the magistrate would have been justified to issue a new warrant on this kind of an affidavit?

Kirby W. Patterson:

I do.

I do, Mr. Justice Harlan.

Felix Frankfurter:

May I ask you when Mr. Lieberman gave them this information?

Kirby W. Patterson:

Yes.

Felix Frankfurter:

The night before?

Kirby W. Patterson:

Pardon.

Felix Frankfurter:

When did — is it Mr. Lieberman, I think it is.

When did —

Kirby W. Patterson:

I don’t know the exact time when Mr. Lieberman gave this information but it was prior to this.

Felix Frankfurter:

But you — we don’t know when?

Kirby W. Patterson:

We don’t know when.

That doesn’t appear about —

Felix Frankfurter:

But that was the night before, the date —

Kirby W. Patterson:

No.

No, we don’t know when it was at all.

I don’t assume —

Felix Frankfurter:

But we know when knowledge of the — commission of the crime took place.

Kirby W. Patterson:

Knowledge, the commission of crime took place, the theft to the whisky, it was the night before.

Felix Frankfurter:

The night before.

Kirby W. Patterson:

And these agents may have been on duty that night and more likely they’ve gone to work the following morning the day that the —

Felix Frankfurter:

Do we know whether the notice of the — came to the notice of the agents?

Kirby W. Patterson:

Pardon me.

Felix Frankfurter:

Do we know whether knowledge of the theft?

Kirby W. Patterson:

We do not know that.

No sir.

I assume rather and it’s only an assumption that they had received this information previously.

They seem they have known these two men.

Potter Stewart:

The record does show that the — the very reason that their agents were in the neighborhood cruising around was to investigate this theft.

Kirby W. Patterson:

That is correct.

Kirby W. Patterson:

That — their minds were fixed on it, yes.

Felix Frankfurter:

Well that wouldn’t be any evidence bearing on probable cause —

Kirby W. Patterson:

No, it would not.

Felix Frankfurter:

That probable cause that a crime was committed.

Kirby W. Patterson:

That’s correct, yes sir.

Yes sir.

Earl Warren:

What if anything was said by the petitioner and his codefendant before the officers said anything to them after they just waved them down.

Kirby W. Patterson:

That wouldn’t have any effect on the question of probable cause.

Earl Warren:

But I’d like to know if — what was said anyway.

Kirby W. Patterson:

Well, what was said — it was not before they were waved down, Mr. Chief Justice.

Earl Warren:

No, I didn’t say that.

I said after they were waved down but before the officers did anything else.

Kirby W. Patterson:

What was said was that — as they were getting out of the car there or as the thing — the two cars had been stopped, petitioner said to his companion who was driving, “Hold it, It’s the G’s.”

And the he said “Tell him you just picked me up.”

That or course is —

Well this petitioner who made those statements?

Kirby W. Patterson:

Yes, that’s correct, yes sir.

However, on the question of probable cause as of the time of stopping, that was thereafter and we’re not relying upon anything which took place thereafter to show guilt.

We are relying upon the course of conduct which these men had been engaged in this — that is rightly exciting the belief on the part of the officers that federal offense had been committed and they — they were the ones who were implicated in that.

Now, in considering these matters, we have to go back and look at the thing from the viewpoint of the officers themselves rather than as it may seem to us as a matter of hindsight.

The first thing and all these things must be taken into the consideration with relation one thing to another because — while one may be insufficient, all together in their totality add up to quite a bit and rightly exciting the belief on the part of the federal officers that they may had been implicated in this particular theft which they were investigating, of course they.

Felix Frankfurter:

You choose the word ‘belief’ very carefully, I congratulate you.

Kirby W. Patterson:

Well, it could be suspicion.

I think –you’re quite right.

Suspicion is the word.

It comes more readily to your mind, but I think it’s more than mere suspicion.

I think there’s a well grounded suspicion in this case.

Now, the first thing — and this is important because it is a federal offense that they must have had a reason to believe it was being committed.

There was this federal offense which had been committed from the previous night in the very near neighborhood.

It was only six blocks from this bar, only five blocks from where the liquor from the alley, where the cartons were picked up.

Kirby W. Patterson:

Now, the second thing is this.

These two men were known to the two officers.

That in itself is not a great deal.

Felix Frankfurter:

We don’t know what that means.

Kirby W. Patterson:

We don’t know what it is but we know that the word implicate was used there and to my mind, implicate ordinarily carries the idea of implicating something which is unfavorable.

Felix Frankfurter:

Yes, but the fact that bit of information came, you don’t know when.

Kirby W. Patterson:

It came before.

It does –it does appear and came before this, yes.

Felix Frankfurter:

Yes I know, but it doesn’t bear along what then intimacy or intensity of knowledge of —

Kirby W. Patterson:

It does not.

Felix Frankfurter:

— they knew these men.

I suppose the agents in Chicago know a hundreds of men who are more or less easy going characters.

Kirby W. Patterson:

Yes, that’s quite true.

And the record is certainly for the reasons stated imperfect (Inaudible) what the nature that implication was, but we do know this objectively by the conduct of the officers that whatever they knew, they thought was of sufficient importance to follow these two men and see what they did.

That’s an objective fact in this case.

Felix Frankfurter:

I suppose that we haven’t any information or do we have, of the number of times officers stop people and they — it turns out they stopped the wrong people.

If I could get those facts, my guess would be that there must be a large number of such mistakes in stoppages.

Kirby W. Patterson:

Yes, they’re undoubtedly are.

Of course here, at this point, they didn’t stopped and they just decided these two fellows were worth observing.

Felix Frankfurter:

Well —

Kirby W. Patterson:

And I believe that they were just two men that the officers do in a perfectly favorable life they wouldn’t.

They wouldn’t say as necessary to watch them.

But —

Felix Frankfurter:

If they were well known characters, they would —

Kirby W. Patterson:

Yes.

Felix Frankfurter:

— one would expect to find a little more in the record.

Kirby W. Patterson:

Well, he would expect often in these records that more would appear than actually does.

That’s quite true.

Charles E. Whittaker:

Well the (Inaudible)

Kirby W. Patterson:

Yes.

Charles E. Whittaker:

(Inaudible)

Kirby W. Patterson:

That’s correct.

We are bound by what does appear in the natural inferences to be drawn from what does appear in connection with other facts and circumstances which were developed in the course.

Felix Frankfurter:

And the whole —

Kirby W. Patterson:

And the whole —

Felix Frankfurter:

And the whole policy behind the requirement of probable cause is that the “the all” and “and all” is not but even guilty people should be convicted.

Kirby W. Patterson:

Well, that’s true.

Yes.

Felix Frankfurter:

You mustn’t forget that.

Kirby W. Patterson:

Yes.

Well, now our third thing here, we certainly entered into these officers’ consideration of time getting their pictures as they saw it.

That was that this was a tavern which was only six blocks from the scene of the theft and it was a place which could be at least a possible outlet for the stolen merchandise.

Fourth was the fact that indirect course was followed in reaching us out and Your Honor, Mr. Chief Justice, you correctly pointed out what the nature of that indirection was.

It was simply that they passed up the right alley went by and had to come back.

Now, that itself again is not decisive, but it shows an unfamiliar act with the premise where all the facts taken together might indicate that they were carrying something back and forth or something going back to the tavern, and I would think it’s empty beer bottle.

I don’t believe they take empty beer bottles according to my information.

But if it was liquor, then it — and he would think and they were engaged in picking it up from a licensed place to deal in liquor.

You think they would know where to go.

If it was an ordinary business transaction, it’s something a little bit out of the ordinary because they were unfamiliar with the premises.

Now a fifth thing is, their conduct when they got in to the south as I have indicated, there was no wholesale liquor dealer at that point with residential premises located at this point.

And this was not a commercial vehicle.

It was a passenger vehicle in which the cartons were being loaded.

Now, it’s been suggested that it might have been groceries that was going back there.

I don’t see any reason to believe the groceries would be picked up, a place where a grocery store is not shown to have existed, taking back the bar specially when the — there are two trips here it would seem that what was being picked up here if anything would be the kind of merchandise that that bar was licensed in allowing to deal in.

Then seventh I believe in the — six I should mention, I have failed to mention sir, is the return to the redtop tavern, which is a possible but not necessarily.

The only outlet for stolen merchandise (Inaudible) but impossible outlet and then in (Inaudible) is the return here and again, this rather clandestine picking up of some kind of cargo which they can’t identify.

Well, how far must officers of the law go before they had in cases like this.

It’s recognized as I’ve said that you can’t — you can’t get a search warrant that even the more restrictive you’ve taken by members of the Court is the need for a search warrant whenever it’s reasonably possible.

It’s recognized that in the case of moving vehicles, you cannot get it because the merchandise will be out of the way by the time the search warrant is obtained.

So they must act if it all upon the probable cause which appears at the very time.

Felix Frankfurter:

Mr. Patterson, you’re restricted to the record and so am I?

Kirby W. Patterson:

Yes.

Felix Frankfurter:

But if one knew and Mr. Lieberman told these agents that by any chance, if they knew about this the night before, if one knew with a knowledge of the theft came to the agents the night before then they would have time to get a search warrant.

Kirby W. Patterson:

Well, I don’t believe that there was anything told in the record —

Felix Frankfurter:

I understand —

Kirby W. Patterson:

No, there’s nothing in the record at all to indicate that these men or either of them were implicated in this particular theft.

Felix Frankfurter:

I understand that.

Kirby W. Patterson:

So, there is no chance to get a search warrant for that — at that time.

Felix Frankfurter:

Well if, there was no chance to get — if you had no basis for — to search warrant, you have no basis for arrest without warrant.

Kirby W. Patterson:

Well, I say there was basis for a search warrant after they have seen all these course of events repeated.

I would say there was at that time but there was not the chance, there was not the opportunity.

Charles E. Whittaker:

But you forgot, is it not, when was the (Inaudible)

Kirby W. Patterson:

I think there was.

Charles E. Whittaker:

(Inaudible)

Kirby W. Patterson:

Well, actually I think that what the — that at time, no concession has been made.

Looking at the actual facts, I think what the agents were attempting to do there was to make a search.

They were not considering actually arrest at the time they stopped them.

However, since it has been conceded here that there was an arrest, you can say that the — you can justify the search in connection with the arrest, but I think there is probable cause independent of an arrest to make a search of that point.

Now, you don’t have to have an arrest in order to make a search, this was decided by Carroll.

I think that a probable cause existed there at the time —

Is there a probable cause (Inaudible)

Kirby W. Patterson:

Yes you have to have, and I think that both — I think both existed as to the time that the officers saw fit to act.

I was reading last night, read an interesting article in a current issue of Times relative to West German butcher who found himself in death both to the Government (Inaudible) for his high living, and he was going out — he was slaughtering cattle on the greens and dumping the cattle in the backseat of his Mercedes and carrying them back to his butcher shop and selling them.

Now, the wind up of that article was, that the way they were apprehended was that an officer was suspicious because the young man who was driving the vehicle, he thought was too young to be driving such a large vehicle.

Now, I don’t draw on that as anything necessarily after these knowledge facts on this case but I do point out to show that all over the world, officers have to act.

Now, they have to have a reasonable desire to inquire as to suspicious conduct in order if ever saw anything.

Now, this officer had not seen fit there to inquire, he would have gone over and looked in that car and seen this beef which was loaded in the backseat of the Mercedes and these officers here would never seen the backseat of this car, the cartons which were labeled for (Inaudible) I see my time is up —

Felix Frankfurter:

May I ask you, sir.

Earl Warren:

You can finish the sentence.

Kirby W. Patterson:

Well, I think my — I think my time is practically finished the — I’m just trying to state that the officers must — they show diligence in matters of this character they never will turn anything up.

Felix Frankfurter:

You probably by your statement that you can disregard whether or not there was an arrest, there was probable cause for a search, how could there be a probable cause for a search of the listed goods by the petitioner, unless you have probable cause of connecting him with the possession of the illicit liquor.

Kirby W. Patterson:

Well, I think there must be probable cause to connection — to connect the — you mean the petitioner where there possession of the — yes.

Felix Frankfurter:

And if the —

Kirby W. Patterson:

Well, no.

Here’s —

Felix Frankfurter:

That would give you ample — if you connect him, if you have probable cause for connecting with the possession of these interstate stolen things that would have probable cause for arresting him.

Kirby W. Patterson:

Yes.

I understood, yes.

Felix Frankfurter:

As I understood you said a while ago that you could justify the search without relying on the arrest.

Kirby W. Patterson:

You can.

I think —

Felix Frankfurter:

I don’t understand.

Kirby W. Patterson:

— justify either way, Mr. Justice.

Felix Frankfurter:

I don’t understand that because you couldn’t justify probability for search unless you have probable cause for drawing the inference of criminality and that will give basis for arrest and if you haven’t got that, and you have that probable cause for search.

Kirby W. Patterson:

Well, I think both exist into this case —

Felix Frankfurter:

Well alright —

Kirby W. Patterson:

— without this but — and the —

Felix Frankfurter:

But if you offer to be a choice?

Kirby W. Patterson:

I was just attempting to answer Mr. Justice Whittaker about what they were actually — the officers were actually thinking.

I think they were actually thinking of the search rather than an arrest when they stopped, but I think there was ample problem for both.

Felix Frankfurter:

Well we mean — what we have to decide, we have to search — x-ray their mind what the basis was on which their acts was taken.

Kirby W. Patterson:

Yes.

Felix Frankfurter:

And their action was taken was — that the action taken was an arrest and there’s maybe a reasonable search for a valid arrest.

If there was no basis for the arrest, then my submission is that there wasn’t any basis for the search.

Kirby W. Patterson:

Well, our contention, of course, is that as for the probable cause for both.

Thank you, sir.

Earl Warren:

Mr. Calihan.

Edward J. Calihan, Jr.:

Bear with me, may it please the Court, Mr. Chief Justice.

Very briefly, the — I want to correct one point.

Counsel here said that the — was stipulated that the whiskey was in interstate commerce.

Edward J. Calihan, Jr.:

The stipulation (Inaudible) there was no proof on the whiskey.

Secondly, I want to point out an answer to your question, Mr. Justice Frankfurter, that Pierotti was a present employer.

Now, how could –-

Felix Frankfurter:

Who?

Edward J. Calihan, Jr.:

— a present employee of Zifran.

Now I don’t know what Mr. Liebermann said, he — but certainly he wouldn’t have a criminal or someone who had just stolen something the night before in his employ that morning.

I can’t think that any evil connotation must be placed on that.

I think the next fallacy in the Government’s argument is that they assume that the cartons went into the liquor store.

There is no evidence whatsoever, but that the cartons did not remain in the vehicle.

Felix Frankfurter:

What would be interest of the liquor store in the radios?

Edward J. Calihan, Jr.:

I don’t know, Your Honor.

I don’t know.

The other point was that in the case of the Time Magazine article in the beef, I think that any officer, traffic officer has a right to inquire into the use for whether or not a person driving a vehicle is under a licensed authority is all there up to drive it.

Now, those cases are legit.

I believe the District of Columbia case, the Bell case here, police officer saw a car driving down the street with no lights on.

They stopped the car and when they look at it, they found cigarettes in the rear of the car.

The court there held, the District or the Court of Appeals in this district held that there was probable cause to stop the car for the traffic violation.

But I can see nothing in this case — it isn’t even a — it’s hardly even an (Inaudible) much less a suspicion and I think that to (Inaudible) in the expression, my wife is a pineapple but [Laughter] — give me an ankle but I don’t think you have probable cause in this case.